The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

Thus Henry put the Constitutionalists on the defensive. But they were ready. Instantly, Randolph was on his feet. He was thirty-seven years of age, fashioned on noble physical lines, with handsome face and flowing hair. His was one of Virginia's most distinguished families, his connections were influential, and he himself was the petted darling of the people. His luxuriant mind had been highly trained, his rich and sonorous voice gave an added charm to his words.1170 He was the ostensible author1171 of the plan on the broad lines of which the Constitution finally had been built. His refusal to sign it because of changes which he thought necessary, and his conversion to the extreme Constitutionalist position, which he now, for the first time, was fully to disclose, made him the strongest single asset the Constitutionalists had acquired. Randolph's open, bold, and, to the public, sudden championship of the Constitution was the explosion in the opposition's camp of a bomb which they had hoped and believed their own ammunition.

Never before, said Randolph, had such a vast event come to a head without war or force. It might well be feared that the best wisdom would be unequal to the emergency and that passion might prevail over reason. He warned the opposition that the chair "well knows what is order, how to command obedience, and that political opinions may be as honest on one side as on the other." Randolph then tried to explain his change. "I had not even the glimpse of the genius of America," said he of his refusal to sign the report of the Federal Convention. But it was now so late that to insist on amendments before ratification would mean "inevitable ruin to the Union";1172 and he would strike off his arm rather than permit that.

Randolph then reviewed the state of the country under the Confederation: Congress powerless, public credit ruined, treaties violated, prices falling, trade paralyzed, "and justice trampled under foot." The world looks upon Americans "as little wanton bees, who had played for liberty, but had no sufficient solidity or wisdom" to keep it. True, the Federal Convention had exceeded its authority, but there was nothing else to be done. And why not use the expression "We, the people"? Was the new Government not for them? The Union is now at stake, and, exclaimed he, "I am a friend to the Union."1173

The secret was out, at last; the Constitutionalists' coup was revealed. His speech placed Randolph openly and unreservedly on their side. "The Governor has … thrown himself fully into the federal scale," gleefully reported the anxious Madison to the supreme Nationalist chieftain at Mount Vernon.1174 "The G[overno]r exhibited a curious spectacle to view. Having refused to sign the paper [the Constitution] everybody supposed him against it," was Jefferson's comment on Randolph's change of front.1175 Washington, perfectly informed, wrote Jay in New York that "Mr. Randolph's declaration will have considerable effect with those who had hitherto been wavering."1176 Theodoric Bland wrote bitterly to Arthur Lee that, "Our chief magistrate has at length taken his party and appears to be reprobated by the honest of both sides… He has openly declared for posterior amendments, or in other words, unconditional submission."1177

All of Randolph's influence, popularity, and prestige of family were to be counted for the Constitution without previous amendment; and this was a far weightier force, in the practical business of getting votes for ratification, than oratory or argument.1178 So "the sanguine friends of the Constitution counted upon a majority of twenty … which number they imagine will be greatly increased."1179

Randolph's sensational about-face saved the Constitution. Nothing that its advocates did during these seething three weeks of able discussion and skillful planning accomplished half so much to secure ratification. Washington's tremendous influence, aggressive as it was tactful, which, as Monroe truly said, "carried" the new National plan, was not so practically effective as his work in winning Randolph. For, aside from his uncloaked support, the Virginia Governor at that moment had a document under lock and key which, had even rumor of it got abroad, surely would have doomed the Constitution, ended the debate abruptly, and resulted in another Federal Convention to deal anew with the Articles of Confederation.

By now the Anti-Constitutionalists, or Republicans as they had already begun to call themselves, also were acting in concert throughout the country. Their tactics were cumbersome and tardy compared with the prompt celerity of the well-managed Constitutionalists; but they were just as earnest and determined. The Society of the Federal Republicans had been formed in New York to defeat the proposed National Government and to call a second Federal Convention. It opened correspondence in most of the States and had agents and officers in many of them.

New York was overwhelmingly against the Constitution, and her Governor, George Clinton, was the most stubborn and resourceful of its foes. On December 27, 1787, Governor Randolph, under the formal direction of Virginia's Legislature, had sent the Governors of the other States a copy of the act providing for Virginia's Convention, which included the clause for conferring with her sister Commonwealths upon the calling of a new Federal Convention. The one to Clinton of New York was delayed in the mails for exactly two months and eleven days, just long enough to prevent New York's Legislature from acting on it.1180

After pondering over it for a month, the New York leader of the Anti-Constitutionalist forces wrote Governor Randolph, more than three weeks before the Virginia Convention assembled, the now famous letter stating that Clinton was sure that the New York Convention, to be held June 17, "will, with great cordiality, hold a communication with any sister State on the important subject [a new Federal Convention] and especially with one so respectable in point of importance, ability, and patriotism as Virginia"; and Clinton assumed that the Virginia Convention would "commence the measures for holding such communications."1181

When Clinton thus wrote to Randolph, he supposed, of course, that the Virginia Governor was against the Constitution. Had the New York Executive known that Randolph had been proselyted by the Constitutionalists, Clinton would have written to Henry, or Mason, or taken some other means of getting his letter before the Virginia Convention. Randolph kept all knowledge of Clinton's fatal communication from everybody excepting his Executive Council. He did not make it public until after the long, hard struggle was ended; when, for the first time, too late to be of any effect, he laid the New York communication before the Virginia Legislature which assembled just as the Convention was adjourning.1182

Weighty as were the arguments and brilliant the oratory that made the Virginia debate one of the noblest displays of intellect and emotion which the world ever has seen, yet nothing can be plainer than that other practices on both sides of that immortal struggle were more decisive of the result than the amazing forensic duel that took place on the floor of the Convention hall.

When one reflects that although the weight of fact and reason was decisively in favor of the Constitutionalists; that their forces were better organized and more ably led; that they had on the ground to help them the most astute politicians from other States as well as from Virginia; that Washington aggressively supported them with all his incalculable moral influence; that, if the new National Government were established, this herculean man surely would be President with all the practical power of that office, of which patronage was not the least – when one considers that, notwithstanding all of these and many other crushing advantages possessed by the Constitutionalists, their majority, when the test vote finally came, was only eight out of a total vote of one hundred and sixty-eight; when one takes into account the fact that, to make up even this slender majority, one or two members violated their instructions and several others voted against the known will of their constituents, it becomes plain how vitally necessary to their cause was the Constitutionalists' capture of the Virginia Governor.1183

The opponents of the proposed National Government never forgave him nor was his reputation ever entirely reëstablished. Mason thereafter scathingly referred to Randolph as "young A[rno]ld."1184

Answering Randolph, Mason went to the heart of the subject. "Whether the Constitution be good or bad," said he, "it is a national government and no longer a Confederation … that the new plan provides for." The power of direct taxation alone "is calculated to annihilate totally the state governments." It means, said Mason, individual taxation "by two different and distinct powers" which "cannot exist long together; the one will destroy the other." One National Government is not fitted for an extensive country. "Popular governments can only exist in small territories." A consolidated government "is one of the worst curses that can possibly befall a nation." Clear as this now was, when the Convention came to consider the Judiciary clause, everybody would, Mason thought, "be more convinced that this government will terminate in the annihilation of the state governments."

But here again the author of Virginia's Bill of Rights made a tactical mistake from the standpoint of the management of the fight, although it was big-hearted and statesmanlike in itself. "If," said he, "such amendments be introduced as shall exclude danger … I shall most heartily make the greatest concessions … to obtain … conciliation and unanimity."1185 No grindstone, this, to sharpen activity – no hammer and anvil, this, to shape and harden an unorganized opposition into a single fighting blade, wielded to bring victory or even to force honorable compromise. The suggestion of conciliation before the first skirmish was over was not the way to arouse the blood of combat in the loose, undisciplined ranks of the opposition.

Swift as any hawk, the Constitutionalists pounced upon Mason's error, but they seized it gently as a dove. "It would give me great pleasure," cooed Madison, "to concur with my honorable colleague in any conciliatory plan." But the hour was now late, and he would postpone further remarks for the time being.1186

So the Convention adjourned and the day ended with the Constitutionalists in high spirits.1187 Madison wrote to Washington that "Henry & Mason made a lame figure & appeared to take different and awkward ground. The Federalists [Constitutionalists]1188 are a good deal elated by the existing prospect." Nevertheless, the timid Madison fluttered with fear. "I dare not," wrote he, "speak with certainty as to the decision. Kentucky has been extremely tainted and is supposed to be generally adverse, and every possible piece of address is going on privately to work on the local interests & prejudices of that & other quarters."1189

The next day the building of the New Academy, where the Convention met, was packed with an eager throng. Everybody expected Madison to engage both Henry and Mason as he had intimated that he would do. But once more the excellent management of the Constitutionalists was displayed. Madison, personally, was not popular,1190 he was physically unimpressive, and strong only in his superb intellect. The time to discharge the artillery of that powerful mind had not yet come. Madison was not the man for this particular moment. But Pendleton was, and so was "Light-Horse Harry" Lee. The Constitutionalists combined the ermine and the sword. Virginia's most venerated jurist and her most dashing soldier were ordered to the front. In them there was an appeal to much that the Old Dominion still reverenced and loved, in spite of the "levelling spirit" manifest there as well as in Massachusetts and other States. So when all eyes were turned on Madison's seat, they beheld it vacant. Madison had stayed away. Had he been present, he could not have avoided speaking.

Dramatic, indeed, appeared the white-haired, crippled jurist, as, struggling to his feet, he finally stood upon his crutches and faced the Convention. He had been unused to public debate for many years, and was thought to be so infirm that no one expected him to do more than make or decide points of order and give his vote. Yet there the feeble old man stood to answer the resistless Henry and the learned Mason. His ancient friend and brother justice, Wythe, leaned forward from his chair to catch the tones of the beloved voice. Tears rolled down the cheeks of some of the oldest members who for decades had been Pendleton's friends.1191 The Constitutionalists had set the stage to catch the emotions which they affected to despise, with the very character whose strength was in that pure reasoning on which they pretended solely to rely.

Without wasting a word, Pendleton came to the point. Henry, he said, had declared that all was well before "this Federal system was thought of." Was that accurate? In a few short sentences he showed that it was not. There was, said Pendleton, "no quarrel between government and liberty; the former is shield and protector of the latter. The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society to preserve liberty." Why are the words "We, the people," improper? "Who but the people have a right to form government?.. What have the state governments to do with it?" Had the Federal Convention exceeded its powers? No. Because those powers were "to propose, not to determine."

"Suppose," asked the venerable Pendleton, "the paper on your table [the Constitution] dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?" Of course. "Then the question must be between this government and the Confederation," which "is no government at all." The Confederation did not carry us through the war; "common danger and the spirit of America" did that. The cry "United we stand – divided we fall," which "echoed and reëchoed through America – from Congress to the drunken carpenter" – saved us in that dark hour. And Pendleton clearly, briefly, solidly, answered every objection which Mason and Henry had made. Nothing could have been more practically effective than his close. He was of no party, Pendleton avowed; and his "age and situation" proved that nothing but the general good influenced him.1192

The smouldering fires in Henry's blood now burned fiercely. This was the same Pendleton who had fought Henry in his immortal resolution on the Stamp Act in 1765 and in every other of those epochal battles for liberty and human rights which Henry had led and won.1193 But the Constitutionalists gave the old war horse no chance to charge upon his lifelong opponent. A young man, thirty-two years of age, rose, and, standing within a few feet of the chair, was recognized. Six feet tall, beautiful of face, with the resounding and fearless voice of a warrior, Henry Lee looked the part which reputation assigned him. Descended from one of the oldest and most honorable families in the colony, a graduate of Princeton College, one of the most daring, picturesque, and attractive officers of the Revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant Lee was a perfect contrast to the venerable Pendleton.1194

Lee paid tribute to Henry's shining talents; but, said he, "I trust that he [Henry] is come to judge, and not to alarm." Henry had praised Washington; yet Washington was for the Constitution. What was there wrong with the expression "We, the people," since upon the people "it is to operate, if adopted"? Like every Constitutionalist speaker, Lee painted in somber and forbidding colors the condition of the country, "all owing to the imbecility of the Confederation."1195

At last Henry secured the floor. At once he struck the major note of the opposition. "The question turns," said he, "on that poor little thing – the expression, 'We, the people; instead of the states.'" It was an "alarming transition … a revolution1196 as radical as that which separated us from Great Britain… Sovereignty of the states … rights of conscience, trial by jury, liberty of the press, … all pretensions of human rights and privileges" were imperiled if not lost by the change.

It was the "despised" Confederation that had carried us through the war. Think well, he urged, before you part with it. "Revolutions like this have happened in almost every country in Europe." The new Government may prevent "licentiousness," but also "it will oppress and ruin the people," thundered their champion. The Constitution was clear when it spoke of "sedition," but fatally vague when it spoke of "privileges." Where, asked Henry, were the dangers the Constitutionalists conjured up? Purely imaginary! If any arose, he depended on "the American spirit" to defend us.

The method of amendment provided in the Constitution, exclaimed Henry, was a mockery – it shut the door on amendment. "A contemptible minority can prevent the good of the majority." "A standing army" will "execute the execrable commands of tyranny," shouted Henry. And who, he asked, will punish them? "Will your mace-bearer be a match for a disciplined regiment?" If the Constitution is adopted, "it will be because we like a great splendid" government. "The ropes and chains of consolidation" were "about to convert this country into a powerful and mighty empire." The Constitution's so-called checks and balances, sneered Henry, were "rope-dancing, chain-rattling, ridiculous … contrivances."

The Constitutionalists talked of danger if the Confederation was continued; yet, under it, declared Henry, "peace and security, ease and content" were now the real lot of all. Why, then, attempt "to terrify us into an adoption of this new form of government?.. Who knows the dangers this new system may produce? They are out of sight of the common people; they cannot foresee latent consequences." It was the operation of the proposed National Government "on the middling and lower classes of people" that Henry feared. "This government" [the Constitution], cried he, "is not a Virginian but an American government."

Throughout Henry's speech, in which he voiced, as he never failed to do, the thought of the masses, a National Government is held up as a foreign power – even one so restricted as the literal words of the Constitution outlined. Had the Constitutionalists acknowledged those Nationalist opinions which, in later years, were to fall from the lips of a young member of the Convention and become the law of the land, the defeat of the Constitution would have been certain, prompt, and overwhelming.

In the Constitution's chief executive, Henry saw "a great and mighty President" with "the powers of a King … to be supported in extravagant magnificence." The National Government's tax-gatherers would "ruin you with impunity," he warned his fellow members and the people they represented. Did not Virginia's own "state sheriffs, those unfeeling blood-suckers," even "under the watchful eye of our legislature commit the most horrid and barbarous ravages on our people? … Lands have been sold," asserted he, "for 5 shillings which were worth one hundred pounds." What, then, would happen to the people "if their master had been at Philadelphia or New York?" asked Henry. "These harpies may search at any time your houses and most secret recesses." Its friends talked about the beauty of the Constitution, but to Henry its features were "horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy."

The President, "your American chief," can make himself absolute, dramatically exclaimed the great orator. "If ever he violates the laws … he will come at the head of his army to carry everything before him; or he will give bail, or do what Mr. Chief Justice will order him." But will he submit to punishment? Rather, he will "make one bold push for the American throne," prophesied Henry. "We shall have a king; the army will salute him monarch: your militia will leave you, and assist in making him king and fight against you."1197 It would be infinitely better, he avowed, to have a government like Great Britain with "King, Lords, and Commons, than a government so replete with such insupportable evils" as the Constitution contained.

Henry spoke of the danger of the power of Congress over elections, and the treaty-making power. A majority of the people were against the Constitution, he said, and even "the adopting states have already heart-burnings and animosity and repent their precipitate hurry… Pennsylvania has been tricked into" ratification. "If other states who have adopted it have not been tricked, still they were too much hurried.1198 … I have not said the one hundred thousandth part of what I have on my mind and wish to impart" – with these words of warning to the Constitutionalists, Henry closed by apologizing for the time he had taken. He admitted that he had spoken out of order, but trusted that the Convention would hear him again.1199

Studying this attack and defense of master swordsmen, following the tactical maneuvers of America's ablest politicians, a partisan on one side, yet personally friendly with members of the other, John Marshall was waiting for the call that should bring him into the battle and, by the method which he employed throughout his life, preparing to respond when the Constitutionalist managers should give the word. He was listening to the arguments on both sides, analyzing them, and, by that process of absorption with which he was so peculiarly and curiously gifted, mastering the subjects under discussion. Also, although casual, humorous, and apparently indifferent, he nevertheless was busy, we may be sure, with his winning ways among his fellow members.

Patrick Henry's effort was one of the two or three speeches made during the three weeks of debate which actually may have had an effect upon votes.1200 The Constitutionalists feared that Henry would take the floor next morning to follow up his success and deepen the profound impression he had made. To prevent this and to break the force of Henry's onslaught, they put forward Governor Randolph, who was quickly recognized by the chair. Madison and Nicholas were held in reserve.1201

But in vain did Randolph employ his powers of oratory, argument, and persuasion in the great speech beginning "I am a child of the Revolution," with which he attempted to answer Henry. There is no peace; "the tempest growls over you… Justice is suffocated," he said; legal proceedings to collect debts are "obscured by legislative mists." As an illustration of justice, consider the case of Josiah Philips, executed without trial or witness, on a bill of attainder passed without debate on the mere report of a member of the Legislature: "This made the deepest impression on my heart and I cannot contemplate it without horror."1202 As to "the American spirit" expressed through the militia being competent to the defense of the State, Randolph asked: "Did ever militia defend a country?"

Randolph's speech was exhaustive and reached the heights of real eloquence. It all came to this, he said, Union or Dissolution, thus again repeating the argument Washington had urged in his letter to Randolph. "Let that glorious pride which once defied the British thunder, reanimate you again," he cried dramatically.1203 But his fervor, popularity, and influence were not enough.

Marshall, when he came to speak later in the debate, made the same mistake. No more striking illustration exists of how public men, in the hurry and pressure of large affairs, forget the most important events, even when they themselves were principal actors in them.

Although the time had not properly come for the great logician of the Constitution to expound it, the situation now precipitated the psychological hour for him to strike. The chair recognized a slender, short-statured man of thirty-seven, wearing a handsome costume of blue and buff with doubled straight collar and white ruffles on breast and at wrists. His hair, combed forward to conceal baldness, was powdered and fell behind in the long beribboned queue of fashion. He was so small that he could not be seen by all the members; and his voice was so weak that only rarely could he be heard throughout the hall.1204 Such was James Madison as he stood, hat in hand and his notes in his hat, and began the first of those powerful speeches, the strength of which, in spite of poor reporting, has projected itself through more than a hundred years.